James Vandevender, Plaintiff - Appellant v. Captain Walter Sass, et al., in their individual capacities, Defendants - Appellees
No. 19-1230
United States Court of Appeals For the Eighth Circuit
July 31, 2020
Appeal from United States District Court for the District of Minnesota
Submitted: February 12, 2020
Before LOKEN, BENTON, and KELLY, Circuit Judges.
Minnesota inmate James Vandevender was assaulted by another inmate using a 4x4 wooden board at the correctional facility in Rush City (“MCF-Rush City“). Vandevender suffered head injuries that require life-long medical treatment and has developed a seizure disorder. His assailant, Mark Latimer, was convicted of attempted murder and assault and is serving a life sentence. Vandevender filed this
I.
On appeal, Vandevender first argues the district court erred in granting defendants’
II.
Qualified immunity shields government officials performing discretionary functions from civil liability “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). Defendants are entitled to qualified immunity unless Vandevender has plausibly stated both (i) a claim for violation of his
A prison official “violates the
Most of our prior failure-to-protect cases arising out of an inmate-on-inmate assault have involved an attacker who was known to be a volatile, dangerous man, see Young v. Selk, 508 F.3d 868, 873 (8th Cir. 2007); Newman v. Holmes, 122 F.3d 650, 651 (8th Cir. 1997); or who previously threatened or fought with the victim, see Everett, 140 F.3d at 1151; Prater v. Dahm, 89 F.3d 538, 540 (8th Cir. 1996); Jones v. Wallace, 641 F. App‘x 665, 666 (8th Cir. 2016); or a victim who should have been better protected because of known prior inmate threats, see Pagels v. Morrison, 335 F.3d 736, 739 (8th Cir. 2003). In these cases, because of the violent nature of inmate assaults, the substantial risk of serious harm was obvious, and defendants’ liability turned on the subjective issue of deliberate indifference (unless the victim had denied or not disclosed the prior threat or altercation to prison officials).
This case is different. The Amended Complaint does not allege (i) that Vandevender had previously been threatened by Latimer or by any other MCF-Rush City inmate; (ii) that Latimer was known to be a violent, volatile inmate; (iii) that Vandevender and Latimer had previously argued or fought, been cellmates at any time, or even knew each other; or (iv) that either Vandevender or Latimer had recently been in protective custody or in a restrictive status such as administrative segregation. Viewed from this perspective, Vandevender was the unfortunate victim of a surprise attack by a fellow inmate. In numerous cases, we have upheld the grant of qualified immunity from
“[B]ecause prisons are dangerous places, housing the most aggressive among us and placing violent people in close quarters, . . . prison officials are entitled to qualified immunity from claims arising out of a surprise attack by one inmate on another.” Everett, 140 F.3d at 1152 (cleaned up).
Vandevender‘s claim is that each defendant was deliberately indifferent to a general condition of confinement that posed an obvious substantial risk of serious harm to all MCF-Rush City inmates — allowing inmates unsupervised access to wooden boards that could be used as weapons and were stored in open, unsecured shelves in the North Industry area, contrary to the Facility‘s “pertinent tool control directives and policies.” We have recognized that “there may be circumstances in which a risk is so obvious or well-documented that a factfinder may conclude a prison official was aware of it.” Prater, 89 F.3d at 542 n.2; see Farmer, 511 U.S. at 840. In those circumstances, our surprise attack precedents will not be controlling.
The Supreme Court in Farmer did not address “[a]t what point a risk of
a “pervasive risk of harm” may not ordinarily be shown by pointing to a single incident or isolated incidents, but it may be established by much less than proof of a reign of violence and terror in the particular institution. It is enough that violence and sexual assaults occur with sufficient frequency that prisoners are put in reasonable fear for their safety and to reasonably apprise prison officials of the existence of the problem and the need for protective measures.
Andrews v. Siegel, 929 F.2d 1326, 1330 (8th Cir. 1991) (cleaned up). This standard has been adopted by other circuits. See Shrader v. White, 761 F.2d 975, 978 (4th Cir. 1985). To our knowledge, no case has held that it is an improper interpretation of the general standard in Farmer, “substantial risk of serious harm.” Indeed, the pervasive risk standard is consistent with the Court‘s statement in Farmer that a failure-to-protect plaintiff must show that prison officials “knowingly and unreasonably disregard[ed] an objectively intolerable risk of harm.” Farmer, 511 U.S. at 846. Thus, an issue on this appeal is whether Vandevender‘s Amended Complaint plausibly alleged that he and other MCF-Rush City inmates faced a pervasive risk of harm from assaults by other inmates using the stored wooden boards as a weapon.
The Amended Complaint contains no plausible allegation that Latimer‘s unprovoked assault on Vandevender was anything other than a single isolated incident. There is no allegation of any other inmate-on-inmate assault using the wooden boards as a weapon. Indeed, there is no allegation that tools in the North Industry area have been improperly used as assault weapons and, if so, the prevalence of those incidents. The allegation of a prior, isolated inmate-on-inmate assault with a pitchfork handle in a different area of MCF-Rush City does not establish that boards used in the North Industry area posed a pervasive risk of inmate-on-inmate assaults. Thus, this is not a case where multiple assaults using identical tools as weapons preceded the assault at issue, making prison officials’ knowledge of the risk obvious. See Goka v. Bobbitt, 862 F.2d 646, 652 (7th Cir. 1988). The allegation that inmate-on-inmate violence is pervasive in the Minnesota Department of Corrections system generally does not support the existence of the pervasive risk alleged in this case.3 The allegation that one inmate told one or more unnamed prison officials that the unsecured boards posed a safety risk does not create a plausible inference that inmate assaults with the boards occurred with sufficient frequency to put MCF-Rush City inmates in reasonable fear for their safety.
The Amended Complaint alleges that MDOC has a tool control policy requiring tools to be secured when not in use. But this does not plausibly allege that the way MCF-Rush City stored wooden construction materials created a pervasive risk of
The Amended Complaint alleged that inmates working in the North Industry area need access to the wooden boards to brace wooden pallets. Inmates bent on assaulting other inmates will use even the most harmless objects as weapons. See Shrader, 761 F.2d at 982. Given the wooden boards’ legitimate use in the North Industry area, absent specific allegations of enough similar prior assaults to create an inference of a pervasive risk, Vandevender‘s Amended Complaint alleges no more than a surprise inmate-on-inmate attack. See Beaton v. Tennis, 460 F. App‘x 111, 114-15 (3d Cir. 2012) (unpublished) (affirming dismissal of
Finally, Vandevender argues that the district court erred in dismissing his damage claims before discovery could be conducted. However, to avoid dismissal for failure to state a claim, he must plausibly allege failure to protect from a pervasive risk of serious harm as defined in our cases, for example, by alleging prior incidents where unsecured tools or implements that serve a useful purpose have been used as weapons for inmate-on-inmate assaults, or previous inmate requests for protection from the risk of inmate assaults that prison officials ignored. Cf. Goka, 862 F.2d at 652; Shrader, 761 F.2d at 982.
For these reasons, the judgment of the district court is affirmed. We deny Vandevender‘s Motion to Supplement the Record on Appeal. Such motions are not favored and in any event the proffered new evidence would not cure Vandevender‘s failure to plead a plausible claim.
KELLY, Circuit Judge, concurring in the judgment.
I agree that the district court properly dismissed Vandevender‘s complaint because he failed to sufficiently plead a deprivation of a constitutional right. I write separately, however, because I would decide the case on whether the defendant prison officials were deliberately indifferent, like the district court did, and not on whether Vandevender plausibly alleged a substantial risk of serious harm. “An official is deliberately indifferent if he or she actually knows of the substantial risk and fails to respond reasonably to it.” Young v. Selk, 508 F.3d 868, 873 (8th Cir. 2007). Mere negligence or inadvertence is not deliberate indifference. Kulkay v. Roy, 847 F.3d 637, 643 (8th Cir. 2017). Based on our precedent, Vandevender has not sufficiently